Madras High Court
K.R. Chinnathambi Gounder vs Bhanumathy And Ors. on 12 March, 1998
Equivalent citations: (1998)3MLJ49, 1998 A I H C 3508, (1998) 2 MAD LW 271
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. The petitioner is the second defendant.
2. The plaintiff filed the suit in O.S.No. 846 of 1990 against the Commissioner, Mugaiyur Panchayat Union as first defendant and the President, Kottamarudhur Panchayat Board as second defendant, the petitioner herein, praying for declaration and permanent injunction. When the matter was posted for filing of written statement on 26.2.1992, the petitioner was not present in the court when called and hence, he was set ex parte. Then, the suit was proceeded in respect of the first defendant alone. On 14.8.1997 the petitioner filed an application in I.A.No. 618 of 1997 for setting aside the ex parte order.
3. The trial court heard both the parties. By the order dated 18.9.1997, the lower court on consideration of the petition and the counter and submissions made by the respective counsel, dismissed the said petition, as there is no merit. Aggrieved over this impugned order, the petitioner has filed this revision before this Court.
4. Mr. Achuthan, the counsel for the petitioner would vehemently contend that the order under revision refusing to set aside the ex parte order is not on proper reason. In fact, it is contended that on the date of filing the application to set aside the ex parte order, that is, on 14.8.1997, the written statement was also filed along with the said petition and however, the same was returned. According to the counsel for the petitioner, the petitioner did not appear on 26.2.1992 due to illness and therefore, the absence on the said date must have been condoned and ex parte order ought to have been set aside.
5. Ms. Rajeswari, the counsel appearing for the respondents, on the other hand, would vehemently oppose the petition on the ground that the petitioner has not come with clean hands inasmuch as he has suppressed very many factors before the lower court as well as this Court. She would further contend that the suit was filed in November, 1990, that the counsel for the petitioner, the second defendant entered appearance on 17.12.1990 by filing a vakalat, that thereafter, the opportunities were given to the petitioner to file the written statement, that is, totally 11 times the case was adjourned to enable the petitioner to file a written statement, that is, on 6.2.1991, 12.3.1991, 24.3.1991, 17.6.1.991, 1.7.1991, 30.7.1991, 27.8.1991, 17.9.1991, 6.11.1991, 11.12.1991 and 26.2.1992 and that despite these opportunities, the petitioner did not choose to appear before the court nor to file the written statement through the counsel.
6. It is also contended by the counsel for the respondent that when an application was filed by the respondents in I.A.No. 1775 of 1990 for violation of the injunction order as against the petitioner, the petitioner filed a counter on 3.11.1993. Therefore, it is submitted that the reason for failure to appear before the lower court on 26.2.1992 cannot be accepted. Moreover, the petitioner filed an application to set aside the ex parte order nearly after five years, that is, on 14.8.1997.
7. In this application there is no sufficient cause given as to why such an inordinate delay was caused. It is also to be noted that subsequent to the ex parte order passed on 26.2.1992, all the witnesses have been examined on behalf of the plaintiff and D.W.1 was also examined on behalf of the first defendant. Now, the matter has been posted for examining the other witnesses on behalf of the first defendant. At this stage, according to the counsel for the respondents, this application has been filed in order to drag on the proceedings further. In order to support her submission, the learned Counsel cited the decision in Deo Nand v. Achaiber Misir .
8. I have given my anxious consideration to the submissions made by the respective side and also gone through the petition, counter and other records.
9. In this connection reference may be made to Order 9, Rule 7, C.P.C. which runs as follows:
Where the court has adjourned the hearing of the suit 'ex parte' and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.
10. The reading of this rule would make it clear that the applicant has to show good cause for his previous non-appearance and it is only on such cause being shown, the court may allow him to put in appearance subject to payment of such costs as the court may consider proper.
11. In the instant case, the case was posted for filing of written statement on 6.2.1991. It was periodically adjourned by giving opportunity to the petitioner, the second defendant to file his written statement. Despite 11 hearings, no written statement was filed. On 26.2.1992 neither the petitioner was present nor the counsel appeared on his behalf. Therefore, the ex parte order was passed. Now, after about five years, that too, on the eve of the conclusion of the trial in the suit, the present application has been filed.
12. What the petitioner now wants is that he may be permitted to file written statement and the court to frame fresh issues and to go on with the trial afresh. As indicated earlier, the first defendant is already contesting the suit. Therefore, the only object of filing a fresh written statement by the petitioner could be to raise new pleas. This means that the proceedings that have taken place during the last five years have to be brushed aside and the parties are to be relegated to the position which they occupied five years ago.
13. Order 9, Rule 7, C.P.C. is applicable only when the applicant shows good cause for his absence on previous dates or otherwise he cannot have any right to ask the court to set aside the ex parte order.
14. In the instant case, not only the petitioner has failed to show good cause, but also suppressed the fact of filing a counter in the application filed by the plaintiff for violation of the injunction order in the year 1993. Therefore, there is no bona fide on the part of the petitioner to seek for setting aside the ex parte order on the reason which he has failed to establish.
15. Even assuming that on the date of the ex parte order, he was not able to be present before the court due to illness, there is no reason as to why he did not pursue the matter for about five years. The act of the petitioner in filing of the application belatedly would show that he is only interested in dragging on the proceedings, which should not be allowed by the court.
16. Therefore, in view of the above discussion, I do not see any ground to interfere in the impugned order, as the reasons for the dismissal of the application filed by the petitioner are sound and proper.
17. In the result, the revision petition is dismissed. No costs. Consequently, no order is necessary in C.M.P.Nos. 17940 and 17941 of 1997.